R v Thurgood HC Auckland CRI-2009-055-2162

[2011] NZHC 1459

ORDER: THERE IS TO BE NO PUBLICATION OF THE NAMES OF THE DECEASED VICTIM'S CHILDREN NOR OF ANY DETAILS THAT MIGHT LEAD TO THEIR IDENTIFICATION.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-055-2162

CRI-2009-055-2308

THE QUEEN

v

CARY GRANT THURGOOD STEVEN JOHN MOORBY

Hearing:         3 March 2011

Appearances: K J Glubb and J M Jelas for Crown

P J Kaye for Accused Thurgood
K T A Jones for Accused Moorby

Judgment:      3 March 2011

SENTENCE OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

KTA Jones, PO Box 721092, Papakura 2244

Copy to:

P J Kaye, PO Box 941, Shortland Street, Auckland 1140

R V THURGOOD AND MOORBY HC AK CRI-2009-055-2162 3 March 2011

[1]      Mr Thurgood, you appear today for sentence having been found guilty of the murder of Leanne Kingston.   You are also to be sentenced on a second count to which you pleaded guilty at the outset of your trial, that of attempting to pervert the course of justice.  Mr Moorby, you are also to be sentenced on that count, having been convicted after your trial.

[2]      I will deal first with the facts relating to the murder.   Mr Thurgood on the morning of Monday 10 August 2009, having dropped your oldest son at a course that he was attending and having dropped off your other three children at the schools that they were attending, you went to the property in Papakura, which was the home of your estranged partner, Leanne.  It is apparent from the evidence given at the trial that she had been away overnight, and returned to the property that morning.  Later in the day the door was found open with keys in the lock by one of her sisters.  It is unclear how you would have gained entry to the house, but it seems that you either entered the house in her absence using a key or you went in with her when she arrived.   Most likely, you were waiting for her when she arrived and that was the Crown’s case at the trial.  There was evidence that you would have been in disguise, wearing a beanie with eyes cut out of the fabric.   Whether you were there in the house or whether you went in having surprised her on her arrival, either way she would not have wanted you there having regard to the recent tension between you and her and the fact that it is quite clear that you were armed with the broken grubber handle that you proceeded to use to attack her.

[3]      What  then developed  was  a savage assault  which  you  committed in  the confines of the small toilet at the house.  It is clear that you beat her with the broken handle of the grubber and stabbed her with a knife.  The jagged end of the grubber may also have been used to inflict stab wounds.  At some stage there was an attempt to strangle her and there is evidence that she may have been gagged.

[4]      The evidence establishes that she was essentially beaten to the ground by repeated blows with the grubber handle and the assault continued as she fell to the

ground, and the assault continued once she was on the ground.  At some stage these stab wounds were inflicted;  that may have happened whilst she was still standing.

[5]      The evidence given at the trial was that she had sustained on a conservative basis 26 separate injuries.  There was reference to external bruises, to contusions and abrasions, and significant stab wounds on the right and left sides of her neck, and in her breast area.  There had been repeated blows with the grubber handle. There were defensive injuries on her hands where she must have gripped the knife that was being used to attack her.  The evidence establishes, in my view, that the attack would have taken some time to complete and it appears that she put up a determined fight as she struggled to preserve her life.  In the end she died as a result of choking on her own blood.

[6]      The defence run at the trial was that you had gone around to see her and had discovered her lying dead in the toilet.  Someone else, a person unknown, had killed her.  You alleged that in a panic you had gathered up the incriminating evidence that was found there, including the two murder weapons and had bundled those into three bags, together with your own clothing which had become covered in blood during the assault but which you said, had occurred when you knelt to check whether she still had a pulse.   You disposed of these items in a rubbish skip behind the place where you worked at Finn McCool’s.  When initially interviewed by the police you denied that you had been at the property, but later came up with the account which the jury has rejected by its verdict.

[7]      You pleaded guilty at the outset of the trial to the charge that you attempted to pervert the course of justice.  This charge was based on a particularly despicable act on your part, namely that you alleged in a second police interview that your oldest son,  a  boy  of  19  years  with  learning  difficulties,  had  made  a  telephone  call confessing to the killing. You later accepted that that had not occurred.

[8]      Mr Moorby, you have been convicted on the same count of attempting to pervert the course of justice.  On the basis that you too allege that the oldest son had telephoned you to confess to the killing.  In your case you added graphic particulars alleging that the son had said that before he had carried out the killing he had had sex

with his mother and enjoyed it.  (I avoid the actual language that you used.)  That later he had a shower to wash the blood off.  Now, this allegation was not made by you when you were first interviewed by the police, at a time when they regarded you as a potential witness of relevance in the murder inquiry.  You made the allegation for the first time to Mr Thurgood’s sister, Ms Hovell on Friday 14 August and on Monday 17 August, you repeated the allegation in your interview with Detective Constable Tohi.  You then maintained that the call had definitely occurred, despite the police being in a position to establish that the young man had not had the opportunity to commit the crime.

[9]      In a third interview you presented as unsure whether or not the calls had been made, suggesting that you may have dreamt it, or that your behaviour had been affected by taking the wrong pills.

[10]     At the trial, your defence was that you had been overcome by the emotion of the traumatic events that you had been close to at that time, including the death of Leanne and your best friend’s arrest for her murder.  Your defence was rejected by the jury.

Victim Impact Statements

[11]     I have received and read the victim impact statements from the four children, and I have also received statements from Leanne’s mother and father and from her three  surviving  sisters.    You  have  heard  those  statements  read  out  in  Court Mr Thurgood, and you have seen and heard the profound sense of loss and grief shared  by  all  of  these  members  of  Leanne’s  family.    They  have  spoken  for themselves far more eloquently than I could reflect what they are feeling.

Mr Moorby

[12]     Mr Moorby I propose to deal with you first.   The charge of attempting to pervert the course of justice carries a maximum potential penalty of seven years’ imprisonment.  Mr Glubb, for the Crown, submits that I should adopt a starting point

of between two and three years’ imprisonment and that you should serve a term of imprisonment rather than be sentenced to home detention.   That submission was based on sentences imposed in other cases which, in large part, concerned facts where the attempt to pervert the course of justice involved threats made to witnesses. This is not that kind of case.  Here, the attempt involved making a false allegation in circumstances designed to wrongly cast the blame on Mr Thurgood’s oldest son. The course of justice was in the end not perverted, but the attempt was plainly made and had a harmful consequence not only on the young man wrongly accused, about which you have heard today in the statement that his aunt read out for him, but also in terms of delay and cost for the police investigation of the murder. And here I refer to the statement of Detective Sergeant French, on which Mr Glubb relies, which sets out the extent to which the police resources needed to be diverted to deal with this false trail that you had thrown up during their inquiries.  Detective Sergeant French estimates  that  at  least  two  weeks  were  added  to  the  inquiry as  a  result  of  the allegations made.

[13]     Notwithstanding these various considerations I consider that the crime  of which you have been found guilty is less serious than those on which Mr Glubb relied.

[14]     I have received and read a comprehensive submission from Mr Jones on your behalf and he has spoken to that this morning.   He submits that an appropriate starting point in the circumstances of the your offending would be in the range of 18 months  to  two  years’ imprisonment.    Taking  into  account  the  absence  of  any aggravating personal circumstances and considering mitigating personal factors, he submits that a final sentence of less than two years’ imprisonment would be justified in your case.  That would engage an obligation under the Sentencing Act 2002 for the Court to consider home detention and Mr Jones submits that that would be the appropriate outcome in your case.

[15]     In the course of his submissions Mr Jones has referred to references which have been provided by friends and colleagues who have spoken well of you and of the efforts that you have made as a solo father to raise your daughter and of the help that you have been to your friend Lisa’s son, Carl.  In addition, you continue to have

the support of your parents, and sisters, particularly your twin sister.  You have had a good work history and the pre-sentence report assesses you as having a very low risk of re-offending. You are 44 years of age, with a very minor conviction for theft from a car many years ago, an event that I do not regard as relevant today.

[16]     In my view, your offending warrants a starting point for sentencing purposes of  18 months’ imprisonment.    There  are  no  relevant  aggravating  circumstances. Effectively, however, you have a clean record and have in the past led a useful life and in many ways the conduct which has brought you before the Court today, is out of character.  I accept that the letter that you have written to the young man who you blamed for the murder shows some degree of regret, but on the other hand I also note Mr Jones’ submission that you maintain your innocence and it is not possible in the circumstances to give any further discount on the basis of remorse.

[17]     Can I also make it plain to you that I simply do not follow the logic of  your position.  To express regret, as you wish to do, but at the same time acknowledge that it was a false account that you gave to the police, and at the same time maintain your innocence, just does not fit together.  Your stance, Mr Moorby, is illogical and I cannot accept it.  There is really no effective explanation for what you did.  You are the only person who can provide it and you have not done so.

[18]     Nevertheless, I think it would be appropriate to reduce the starting point for sentencing purposes to a period of 18 months’ imprisonment recognising the mitigating factors to which I have referred.

[19]     That being the case, under s 15A of the Sentencing Act I am obliged to consider sentencing you to home detention.  You are plainly not a risk to the public and I consider that the relevant purposes of sentencing – holding you accountable, promoting in you a sense of responsibility for the harm you have done, denouncing your conduct and deterrence, will be met by a combination of sentences of home detention and community work.  And at the end of this hearing the sentence I will impose will be eight months’ home detention and 300 hours community work.

Mr Thurgood

[20]     Mr Thurgood, under the Sentencing Act, I am obliged to sentence you to life imprisonment unless given the circumstances of the offence and the offender to do so would be manifestly unjust.   I have read the pre-sentence report and I have heard from Mr Kaye and read his written submissions.   I am, of course, aware of the circumstances of the offence.  There is nothing in your circumstances or those of the offence which would make a sentence of life imprisonment manifestly unjust, and that is the sentence that I will impose.

[21]     The main issue on which I have received submissions from counsel concerns whether or not I should order that you serve a minimum period of imprisonment greater than would normally apply by default to someone convicted of murder.  That default position is a minimum term of ten years.  Under the Sentencing Act the Court is obliged in imposing a sentence of life imprisonment to order that the offender serve a minimum term of imprisonment which is the minimum period considered necessary to hold the offender accountable, denounce his conduct, deter others and protect the community.

[22]     Section 104 of the Act also provides that the minimum term must be at least

17 years in certain stated circumstances.  For the Crown, Mr Glubb argues that three of those circumstances apply to your crime namely, calculated planning, unlawful entry or presence in a dwelling place and the fact that the murder was committed with a high level of brutality, cruelty and callousness.   Mr Kaye in his written submissions has not felt able to take issue with the Crown’s submissions on this point other than to downplay any element of planning and pre-meditation on your part.  I understand, and Mr Kaye has confirmed to me, that you continue to maintain your innocence of this crime, but you must understand that I am bound to sentence you on the basis of the jury’s verdict and Mr Kaye in the submissions he makes to me, has also to accept the logic of the jury’s verdict.

[23]     Against that background he has responsibly taken the position that he cannot argue that the Crown is not entitled to rely on the aggravating circumstances of the fact that the murder involved unlawful entry or unlawful presence in Leanne’s house

and that the crime was committed with a high level of brutality, cruelty and callousness.  He has made it plain that he has no instructions to concede that issue, but he has responsibly accepted that s 104 of the Sentencing Act applies.

[24]     I am in no doubt that s 104 does apply with the result that the minimum term imposed must be at least 17 years.   The only issue on which counsel were apart, effectively was the question of the extent to which you planned to carry out the murder.   Mr Glubb submitted that the evidence established that this could not be treated as a random event occasioned by something that had happened in the heat of the moment.  He pointed out that four days before the commission of this crime you were captured on CCTV footage purchasing various items that were later found to have either been used or present at the scene of the attack, including gloves and plastic zip-lock cable ties.  The broken half of the grubber handle used to commit the murder came from  your property where the  police found the other half of that implement.   There were many other items found within the black rubbish bags – including the beanie with the holes cut out of it for the eyes – within the black rubbish bags which you disposed of at Finn McCool’s.  Many of these items were blood stained and were also able to be identified as having come from your home. The blood stained clothing that was located indicates that you were in a position immediately to change clothes once you had committed the murder.   The night before the murder CCTV footage captured you at a service station remote from your own home but near to Leanne’s.  This was at a time when you told the police you had been in bed asleep.   Telephone records suggest that you were aware she had spent the night away since you rang her numerous times that night and again early in the morning.  You admitted to the police that you drove past her address at 8.30 a.m. noting her absence.

[25]     Mr Kaye submitted that there was no calculated or lengthy planning and noted  that  there  was  no  suggestion  of  an  arrangement  under  which  money  or anything of value passed from you to another person.  While I agree the latter point is clearly not a feature of this crime, in the end I accept that there was a degree of planning and pre-meditation here which establishes beyond any real doubt that you went to Leanne’s home that morning at least for the purpose of seriously assaulting her.  There would have been no reason otherwise for you to take the various items

which were proved to have come from your home and most importantly, the broken grubber handle which you took with you, shows that you went there with the intent to cause her really serious harm.

[26]     There can be no argument in any event, that there was at least unlawful presence by you in her home so that circumstance under s 104 applies.  There can be no doubt either that this crime is properly described as one committed with a high level of brutality, cruelty and callousness. You were armed and she was not.  It was a frenzied attack in the confines of a small toilet from which there was no escape.  The forensic evidence satisfies me that you attacked Leanne whilst she stood, whilst she fell and whilst she was on the ground.

[27]     There could be no possible justification for what you did.  It seems from the evidence that you had become agitated by the prospect of Leanne forming a new relationship and you were jealous of that.  She was obviously entitled to move on with her life and there was no reason for you to react as you appear to have done.

[28]     I am in no doubt that the minimum term must be a period of at least 17 years. In the circumstances I am obliged to impose at least that minimum unless I am satisfied that it would be manifestly unjust to do so.  There is no basis upon which it could be argued that it would be manifestly unjust to make such an order.

[29]     The question then is, how long should the minimum term be?  In making that assessment I have had regard to various cases to which I have been referred by Mr Glubb.  I will not refer to these cases this morning but when a written record of these remarks is made it will contain a reference to the cases in question.[1]

[1] The cases are R v Weatherston CRI 2008-012-137 HC Christchurch, 15 September 2009, R v Goodman [2008] NZCA 384, R v Ogle CRI 2009-091-2763 HC Wellington, 16 October 2009,  R v Duff CRI 2008-091-98 HC Wellington, 3 October 2008 and R v Fenton CRI 2006-088-3599 HC Whangarei, 28 February 2007.

[30]     I have already described the way in which you carried out this attack and referred to the other circumstances which are relevant under s 104 of the Sentencing Act.  I mention now the charge of attempting to pervert the course of justice.  Since I

will impose a sentence of life imprisonment it is not possible for me to impose a

cumulative sentence in respect of this crime.  However, I am able to treat it as an aggravating circumstance in relation to the murder and I consider that it should be treated in that way.  Effectively, in making the allegation, blaming your oldest son, you were attempting to divert suspicion from yourself.  The police were able to show that the phone calls that you alleged had been made by your son had never been made and also to establish that he had been at the training course where you yourself had dropped him off, at all relevant times on that day.  As his father, you knew that he had learning difficulties and that the allegation, horrible as it was, would be one which he would find particularly difficult to cope with.   I consider that it will be appropriate to treat the attempt to pervert the course of justice as an exceptional circumstance under s 104, taking it into account in fixing the minimum term that I will order you to serve.

[31]     I have already referred to the facts which lay behind the attempt to pervert the course of justice, the harmful consequences for your son and the effect that the false allegation had on the cost and length of the murder inquiry.  In the circumstances, I consider that an appropriate starting point were the matter being dealt with on its own, would be imprisonment for 18 months.    In the end  I do not differentiate between you and Mr Moorby in relation to the starting point because although it appears that the horrible allegation of sexual intercourse emanated from him, your conduct consisted of falsely blaming your own son for the murder of his mother, a murder that you had committed.

[32]     I would not make any deduction from that starting point in respect of the guilty plea which was only entered on the first day of the trial and would not have had the consequence of reducing the evidence needed to be called at the trial or resulted in any other saving in resources.  However, since I intend to treat this matter as an aggravating feature in respect of the murder it will be necessary to have regard to what is called the totality principle which I think must be applied under s 85 of the Sentencing Act, when fixing the minimum term that should be ordered.

[33]     In the end I have decided that I should sentence you to a concurrent term of

18 months’ imprisonment on the attempt to pervert the course of justice, that term to

be served together with the life sentence for the murder.   Having regard to the

totality principle I will add a period of six months to the length of the minimum term that I would otherwise have imposed for the murder.

[34]     Mr Thurgood I have seen the addendum to the pre-sentence report in which you profess to being sorry for the suffering caused by Leanne’s death and I have also read the letters addressed to her family and to your children, in which the same sentiment is expressed.   These statements, however, are accompanied by absolutely no acknowledgement that you are in fact the person who killed Leanne.  And as a consequence there is nothing in the way of remorse that I can legitimately take into account in your favour.  Nor are there any other mitigating circumstances.

[35]     Taking all of these considerations into account, the cases to which I was referred by Mr Glubb, and the six months’ period to which I have already referred in relation to the attempt to pervert the course of justice, I have reached the view that the appropriate sentence to impose is life imprisonment with a minimum term of 19 years.

Sentences

[36]     You should both now stand.

[37]     Mr Moorby, on the charge of attempting to pervert the course of justice you

are now sentenced to eight months’ home detention and 300 hours community work.

[38]     You must travel directly to the home detention address at 5 Gillies Road, Otahuhu and await there the probation officer and the installation of the necessary electronic equipment.  Home detention is subject to the general conditions that apply together with the special conditions which have been set out in the home detention report which was appendix 1 to the pre-sentence report.

[39]     Mr Thurgood, on the count of murder you are sentenced to imprisonment for life.  I also order that you are to serve a minimum term of 19 years.

[40]     On the charge of attempting to pervert the course of justice you are sentenced to a term of 18 months’ imprisonment, to be served concurrently.

[41]     You may both stand down.

[42]     It is appropriate that I acknowledge the presence of Leanne’s family here today, the grief that you are suffering, your courage in speaking in public to me about  these  terrible  events  and  the  dignity  with  which  you  have  conducted yourselves.  May I add that I have not referred to you by name in the remarks that I have just made.  What I have said is written down and it goes to many people and I have not referred to you by name in an attempt to preserve your privacy.

[43]     I now make an order that there is to be no publication of the names of the

deceased victim’s children nor of any details that might lead to their identification.